Friday in DC: Creative Approaches to Critical Habitat Protection Under the ESA
Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn’t atypical; critical habitat designations often generate controversy. But one might wonder why.
The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition. Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA. Almost all the attention instead goes to section 7’s prohibition on federal actions likely to “jeopardize” listed species and to section 9’s take prohibition. On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares …
On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years. And that additional analysis? OIRA won’t even say what it’s for. “Trust us” is not the most reassuring government transparency.
EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a “risk and technology review,” which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other …
The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA). But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources. The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence.
The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity. There is no doubt that reliability is a critical concern—but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as …
This morning, CPR President Rena Steinzor testifies before the House Committee on Small Business's Subcommittee on Investigations, Oversight and Regulations. From the witness list, it would appear that this'll be another in a series of hearings structured by House Republicans to inveigh against the regulations that protect Americans from a variety of hazards in the air we breathe, water we drink, places we work, products we buy, food we eat, and more.
If history is any guide, most of the testimony and discussion will focus not on how best to protect Americans from such problems, but on the costs to small business of doing so. Steinzor is the lone witness permitted to the minority party -- the Democrats, that is -- and as such, could well be the only person who mentions the benefits of regulation. Study after study has demonstrated that the economic benefits of regulation vastly exceed …
Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches. To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls.
The issue representing the innermost doll, which the Court will only get to if it can unpack the outer dolls, is the most intriguing and arguably the most significant in terms of the future of takings doctrine. The question is whether a federal agricultural marketing program results in a “taking” of private property within the meaning of the Takings Clause of the Fifth Amendment by requiring raisin producers to …
A quick update on the OIRA leadership front: Dominic Mancini has been named the Deputy Administrator of OIRA, and now “leads” the office from this position, an OMB spokesperson says via email (The Hill was up with this news a bit earlier today). Boris Bershteyn’s appointment as Acting Administrator has ended, the spokesperson said. Bershteyn had reached a time limit under the Federal Vacancies Reform Act, which puts restrictions on acting officers performing in Senate-confirmed positions. By the letter of the law, the Administrator of OIRA is a Senate-confirmed position; the Deputy Administrator is not.
Mancini joined OIRA as an economist in 2002 or 2003, and in 2009 became OIRA’s Branch Chief for Natural Resources and the Environment.
Next Tuesday, the Supreme Court will hear oral arguments in Mutual Pharmaceutical Co. v. Bartlett, a case that raises once again the troubling question of whether federal regulatory agencies should trump local juries in common law tort actions. The precise question at issue is whether the fact that the federal Food and Drug Administration (FDA) approved a name-brand drug many years ago precludes a state court jury from holding the manufacturer of the generic version of that drug strictly liable for damages to patients caused by marketing the drug.
The plaintiff in this case, Karen Bartlett, visited her doctor in December 2004 complaining of shoulder pain. Her doctor prescribed Clinoril, one of many non-steroidal anti-inflammatory drugs (NSAID) that are commonly used to treat arthritis, bursitis, and other painful conditions. When Ms. Bartlett’s pharmacist filled the prescription, however, it gave her the generic version of the drug …
Last week Rena Steinzor wrote here that the Acting Administrator of the Office of Information and Regulatory Affairs (OIRA), Boris Bershteyn, was approaching a time limit under the Federal Vacancies Reform Act. That law stipulates that a temporary appointee in a Senate-confirmed position can generally serve for no more than 210 days, unless a nomination is pending, which in this case it is not.
Where Bershteyn was previously listed as the OIRA Administrator, the White House has now removed his name.
Complying with laws is important. It’s also important for the President to take the next step: nominating a new OIRA Administrator, someone with a vision for protecting public health, safety and the environment and who can take the office in a new direction.
A report released yesterday by the Southern Poverty Law Center (SPLC) and the Alabama Appleseed Center for Law and Justice offers a devastating glimpse into the world of Alabama poultry workers. Forced to hang, fold, gut, or slice more than 100 carcasses each minute, these workers suffer injuries at astounding rates: of the 302 workers interviewed, almost three-quarters have experienced a significant work-related injury or illness, from deep cuts and debilitating hand pain to chemical burns and respiratory problems. More than anything, these injuries are a result of the punishing line speeds that workers have to keep up with—lines that never slow or stop when a worker is in pain, but only when a piece of chicken becomes lodged in the machinery.
Unsafe at These Speeds: Alabama’s Poultry Industry and Its Disposable Workers is a sobering report, especially since it comes at a time when …
It has now been nearly seven months since Cass Sunstein left his job as Administrator of the White House Office of Information and Regulatory Affairs (OIRA). Much has happened in that time, most significantly an election that returned President Obama to the White House, but also a growing recognition that whatever second-term accomplishments the President is able to register on climate change and a number of other issues are likely to be brought about through regulation, not legislation. That's precisely why it's important to fill Sunstein's job with someone who'll help regulatory agencies accomplish their important work.
Unfortunately, the President has yet to nominate a successor. As a result, Sunstein's temporary replacement, Boris Bershteyn, will reach a milestone in just a few days: Under the law, his time as Acting Administrator is up. It would shock no one if the White House …
